August 29, 2007

Copyright Law v. iPhone Freedom Fighters

by publius

Big news brewing on the iPhone front. As you may have heard, a teenager (not Miss Teen South Carolina, sources report) posted instructions about how to “unlock” the iPhone. Unlocking it means you can use it on other networks and not just AT&T’s. There’s a little wrinkle though – copyright law.

I’m still getting my head around it, but here’s a good introduction from Jennifer Granick, the law professor who successfully obtained an “exemption” last year from the U.S. Copyright Office allowing people to unlock their cell phones. If you’re a little confused about how copyright fits in here, you should be. It’s absurd.

I may revise this later, but here’s the gist as I understand it (admittedly not well). As many of you know, digital copyright holders (movies, music, etc.) often add locks or controls to prevent unauthorized use or infringement. To make sure these locks work, the DMCA (i.e., copyright law protecting digital work) includes an “anti-circumvention” provision. That means you can violate copyright law not merely by infringing on the work itself, but by bypassing (or “circumventing”) these locks and controls.

Ok, on to wireless phones. Wireless phones include software (“firmware”) that allows them to connect with networks – that’s what makes them work. Wireless carriers, however, use various types of “locks” to make sure your phone only works on their network. (Sometimes they freeze the software configuration, sometimes they prevent new software from working, etc.). Well, smart people starting figuring out how to get around these locks. Wireless carriers didn’t like that. So, some sharp attorney somewhere realized that the cell phone firmware was copyrighted. And, well, you can guess the rest.

Yes, that’s right, wireless carriers starting suing “unlockers” under copyright law citing the anti-circumvention provisions (accompanied by hefty fines). Usually, people who circumvent are trying to, say, unlock a door to watch a movie. Here, by contrast, they’re trying to unlock a door to turn off the damn movie and watch a different one. But no matter, it’s a copyright violation, so say the wireless carriers.

Long story short – Professor Granick petitioned the Copyright Office and eventually obtained a ruling that cell phone unlocking was “exempt” from the anti-circumvention provision. As a result, you can’t violate copyright law by unlocking your cell phone. Now that doesn’t necessarily mean unlocking will sweep the nation – it just means that carriers can’t use copyright law to prevent you from unlocking your phone (they can still do so contractually through a service agreement).

Here’s the catch though. The copyright exemption only covers people who unlock the phone. It doesn’t necessarily cover people who tell you how to do it (people like our iPhone teenager friend who won’t be getting a corporate fruit basket from AT&T this year). These people could still be liable (criminally liable, in fact) even though the underlying act of unlocking is exempt.

As Professor Granick explains, the iPhone drama could bring this issue to a head. It could also bring to a head the issue of whether turning off or reconfiguring cell phone firmware is covered under the DMCA in the first place (then the exemptions wouldn’t matter because it wouldn’t be illegal in the first place).

Again, I’m not 100%, but that’s my tentative understanding. Feel free to add or correct me in the comments.

It sure sounds like a steal. On Aug. 31, George Hotz plans to trade in his iPhone for a metallic blue Nissan (NSANY) 350Z sports car and three brand-new iPhones. But the 17-year-old's device is no ordinary Apple phone. Hotz hacked his iPhone and unlocked it so that it can be used on a variety of cell-phone networks, becoming the first person known to have done so. The person buying Hotz's phone, Terry Daidone, believes he's the one getting the deal because Hotz has agreed to work for him at his cell-phone refurbishing company, CertiCell.

It looks like they have a good chance of winning:

Problem is, it could be argued that, in reality, the lock only protects access to a carrier's communications network—and communications services aren't copyrightable under the Act, explains Jane Ginsburg, professor of literary and artistic property law at Columbia Law School. "This law was written for DVDs and video games," she explains. "What's going on here is using the Copyright Act to achieve another objective."

Indeed, this time, hackers may have the law on their side. Remember, decades ago, automakers built their instrument panels so that only authorized radios of their own manufacture would fit in. Eventually, U.S. courts ended that practice.

"If Apple and AT&T push too hard, they might see a revision of [the Copyright Act, and it won't be in their favor]," says Richard Doherty, director of consultancy the Envisioneering Group.

No person shall ... offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that that -

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

One thing to remember is the reason for the DMCA exemption: you own your cell phone, the network carrier does not. Therefore you can legally do whatever you please with it. And let's not forget that unlocking cell phones is only abhorrent to network carriers in the U.S. because they lost this battle in Asia and Europe long ago. Over there, everybody pays full price for their cell phones, which are sold unlocked, and thus can be used on whichever network the cell phone owner chooses. It's an abstract concept called "competition" which is virtually unknown in the U.S. telecom industry.

Aside from the phone locking, the other scam we Americans have somehow allowed our mobile phone companies to foist on us is that both parties to a call pay for it. As I understand it, in other countries the phone company only gets paid once, by the person who made the call.

not exactly. once you start getting near the software and any content protection mechanisms in the device, you're face-to-face with the DMCA.

same thing with DVDs: you can abuse your DVD player however you like; but once you start messing with the copy protection / regional locking stuff, you're likely to be violating the DCMA.

i wouldn't be surprised if the telcos found a way to argue that modding a phone to work on a different network will defeat the content protection stuff, thus allowing ring tones, movies, games, etc. to be copied.

As I understand it, in other countries the phone company only gets paid once, by the person who made the call.

You mean you don't? Do you have to pay if people call you on your mobile? Wait... when I think about it; I think that's how it works if you use messaging (sms), though I'm not even sure about that. I don't use my mobile a lot ;)

I have no problem whatso-ever to unlock my dvd player so that it plays all discs. If I honestly buy a DVD in another region I should be able to play it on my honestly bought dvd player. I hate the whole regioncode thing to be honest. I also hate the screaming warning-clip against piracy I have to watch on my honestly bought DVD's. Pirated DVD's don't have them so I don't see why buyers should be punished for something they obviously didn't do.

I went on holiday to Australia and it was very convenient that I could just buy a pre-paid simcard there and put it in my phone. Much cheaper than buying a phone and much cheaper than being called on my own Dutch mobile number.

dutchmarbel -- welcome back! What happens here is: cell phones only work on one network. This is (imho) completely stupid, but I've never been able to find a way around it. The upside is that the cell phones are incredibly cheap: normally, you commit yourself to a year or two with a given company, and get the cell phone at a special reduced price, which is -- well, I don't know how reduced it is, since I've never bought a cell hone any other way, but a basic cell phone is sometimes free, and a really nice one can be, oh, seventy dollars or so.

A perfect illustration of the fact that markets require regulations to keep them competitive. They don't just happen that way all by themselves.

(And thanks about Jamie. I do not _want_ to get into fights with him; it just turns out that way. If only he'd stick to writing posts I really disagree with about some trivial topic, like backgammon strategies or the pros and cons of different variants of roses, I wouldn't bother.)

It is difficult to explain just how odious, how ill-advised, how burdensome the DMCA appears to those of us who design and build digital hardware for fun and profit. So we almost always resort to the automotive analogy.

Under the DMCA, many of the crucial bits of hardware and software that we otherwise own are declared off-limits to tinkering or modification. Let's say that like many Americans, you enjoy working on, maybe even modifying your car. Suddenly in one model year, every manufacturer's cars are built with a legally-"special" bolt - it's still got a hex head, all your tools fit it, but it is now illegal for you to turn it, much less remove it. Because of the law governing who may turn this bolt, your car can only be legally serviced by certain very expensive shops licensed by the manufacturer, and the manufacturer sue if there's any sign that special bolts have been turned by anyone else. A few people do their own brake jobs anyway, and are sued. And the courts convict, laying fines of thousands of dollars for every turn of every bolt, and jail time for those who go so far as to install an aftermarket intake manifold. And many services become flat unavailable; the manufacturer doesn't really want you to fix your car, they want you to buy a new one, so you can't get a new water pump installed at all, nor a new timing belt, nor a new wheel bearing. In effect, the manufacturer has now claimed nearly-complete control over how the owner can modify or use their own car.

That's the DMCA.

If you find this surprising, please read Lessig's book The Future of Ideas.

If you find this infuriating, please join the Electronic Frontiers Foundation.

By the way: the DMCA is the brainchild of the music recording and film and TV industries. They are large contributors to Democratic campaigns, and so on this issue the Democrats have historically been as bad or worse than the Republicans. In fact, Rick Boucher and John Doolittle are leaders of Congressional efforts to revamp or repeal the DMCA, while many prominent Dems support it.

"If only he'd stick to writing posts I really disagree with about some trivial topic, like backgammon strategies or the pros and cons of different variants of roses, I wouldn't bother."

yeah, that was my reaction, too, for the first couple of days.

but after watching his m.o. since then, my attitude has changed.

now, if i were to read him strongly endorsing the mauve floribunda "angel face" (american rose society john cook medal 1971), i would take that as pretty good evidence that it was a mendacious, militaristic, authority-worshiping breed of roses.

My only quibble is that I'm rather uncomfortable seeing this all referred to generically as "copyright law."

In reality, as you almost, but don't quite, make clear at points, it's only and specifically the Digital Millennium Copyright Act (DMCA) that's at fault here, and that's entirely separable from "copyright law" as a whole, which I hate to see tarred with the wholehearted stupidity of the vile and egregious DMCA (which should burn in hell, but not before being repealed).

I have some strong problems with contemporary copyright law -- primarily, the grasping and excessive extensions of time granted by repeated revisions of the covered periods in the past century -- but the DMCA is really a quite alien beast grafted onto the concept of copyright, and the concept of "copyright" itself isn't at fault here.

Otherwise, good post.

Bernard: "Is the author of a book (or a chapter in a locksmithing book) explaining how to pick locks guilty of breaking and entering?"

No, because it's not covered by the DMCA, because it's not software. The "anti-circumvention provisions" of the DMCA are utterly disconnected from any concept previously connected to copyright, which is part of why they're so nuts. The DMCA is a perfect example of how sheer money to lobby for a law that, due to technology was in a previously unexplored area of law, can result in Congress legislating utterly monstrous law, because what does Congress care except for raising more campaign funds?

"If I honestly buy a DVD in another region I should be able to play it on my honestly bought dvd player."

That aspect I have mixed feelings about. As a consumer, I agree completely.

But the companies do have a valid reason for regions, as I understand it. My understanding is quite limited, to be sure, and may be in error, as I'm partially and quite imperfectly extrapolating a bit from the book business. But in both cases, as I understand it (I know the book business part), the companies only own the rights to sell the DVD/books in a given set of countries; the rights to another region are sold separately, and in many cases to different parties.

In the book business, if you pay a bunch of money to buy, say, British Commonwealth rights to publish a certain book, you have to buy North American rights separately (unless you buy worldwide rights). My tentative (perhaps somewhat incorrect) impression is that DVD publishing is somewhat similar, as regards the different regions.

In each case, you may have different publishers selling somewhat different, but similar, products in specific regions they alone have the rights to publish in. Nothing either morally wrong or ethically mandatory there. It can be done other ways, but there's nothing wrong with doing it that way (different companies may simply not have the ability to successfully publish and sell in all areas of the world; few do).

As a consumer, there's nothing morally wrong with seeking the most convenient product for yourself.

But for a company to violate their contract, and sell where they have no right to, because only another company has bought and paid for that right, would be morally wrong. And why it should be legally wrong for a company to keep others from violating their proper rights is unclear.

So when you say you "should" be able to violate that law, you're simultanaeously making a reasonable request from your POV, but you are also saying you should be able to steal from and harm someone else (the publisher who actually owns the rights to sell the product in your region).

Kinda a mixed bag, I'd say, even if it's only viewable more clearly as such if you happen to be the person/company being stolen from.

The alternative is to make contracts for distribution of products by country or region illegal throughout the world, and require that only single contracts to distribute products to every single country in the world be allowed.

That remains impractical for now.

So "If I honestly buy a DVD in another region I should be able to play it on my honestly bought dvd player" becomes "I want there to be worldwide massive stealing, and collapse or severe damage to most publishers of [DVDs/CDs/books/music/software/intellectual property/] and their industries.

Gary, are you saying it should be illegal to buy a book in a region different from where you live and then take it home and read it? Somehow books continue to exist despite their lack of technological enforcement of the distribution contracts, though I imagine that could change if the content industry gets its way and continues down the path of trying to make anything that's illegal or against their contracts as impossible to do as they can, never mind the collateral damage.

Gary, I didn't expect you did, yet you still give no hint as to why you believe it's necessary for DVDs, unlike books and all other objects that companies may have contracts to sell in certain regions, need to impose new technological restrictions on their buyers.

And given what you wrote at 1:07, I'm unclear on what violation of the law you're complaining about DM endorsing at 12:40, since she's not talking about selling anything.

It's BS anyway, the region-encoding exists purely to support different pricing models: the vast majority of DVDs have the same worldwide distributors (Universal, Sony etc.).

My time is pretty evenly split between at least two DVD regions, and it is an absolute scandal that my legally-purchased DVDs don't necessarily work in my legally-purchased DVD players. More problematic still is that many of the obscure movies I like are only available in a single region.

This makes bootlegs an objectively superior product, a phenomenon getting even worse with the new HD formats. If the major studios are going to cripple their own product, they will force people to cut them out of the deal. Laws like the DMCA exist because content owners have ridiculous business models.

"Gary, I didn't expect you did, yet you still give no hint as to why you believe it's necessary for DVDs, unlike books and all other objects that companies may have contracts to sell in certain regions, need to impose new technological restrictions on their buyers."

Indeed, I gave no reason as to why I believe that, because I never said a word indicating any such belief, probably because I hold no such belief, and have absolutely no idea why you might even suspect I hold such a belief.

What on earth did I say that makes you think otherwise?

Was it my non-stop denunciations of the DMCA above that led you to believe I support it? Or what?

"This makes bootlegs an objectively superior product, a phenomenon getting even worse with the new HD formats."

As a practical matter, it actually takes about two minutes for a remotely clueful person to find free software on the net that you can download to crack all regional protection on DVDs, and you can do it for free, and you'll get to use high-quality original commercially released disks, rather than crap quality bootlegs.

That "this makes bootlegs an objectively superior product" over a cracked original seems difficult to support. I prefer the cracked original to something filmed on a handheld video camera of a movie theater's projection, but that's just my own subjective view of what's "objectively superior."

Gary, why on earth would you believe that DVD bootlegs are filmed in theaters? Are you aware that most bootlegs are digital reproductions of the commercial DVDs?

Also, are you aware that for people that do not own a computer (or do not wish to watch video on their 15" monitor and crummy computer speakers), downloading free software simply does not solve the problem at all? Perhaps you can explain how I might use this software to upgrade my DVD player...

Care to tell me how you crack your region-encoded DVD on a DVD-player with a different region? You can crack the player yes, and usually this works, but do you want to take the chance with the dvd drive of a laptop computer, and run the risk of bricking it?

Why should I put my expensive, legally-purchased hardware into the hands of some anonymous Russian teenage hacker merely in order to play my expensive, equally legally-purchased media?

"Gary, why on earth would you believe that DVD bootlegs are filmed in theaters?"

Because millions of them are. It's a pretty good reason.

"Perhaps you can explain how I might use this software to upgrade my DVD player..."

No, you can use it to make your own region-free copy of any DVD, of course, and play it on your big-screen tv, or wherever you want, to your heart's content. Why would you make a cracked disk and play it only on your computer?

Buy a bootleg on the street, and you have no idea what quality, or lack, you're getting unless you're carrying a DVD player/computer with you to test it before buying. Make it yourself, and your quality is assured.

Personally, I'm pretty sure which is "objectively superior."

I'm 100% for it being legal to make personal use copies of any copywritten material, myself. I've never written or said a word in my life to suggest otherwise, of course.

Actually, making your DVD player region-free often isn't difficult, either, though, since you ask.

No, you are mistaken. It is not difficult for certain models of DVD players with certain firmware revisions. For others, it is simply impossible.

Look, I know that doing a single google search may allow you to feel that you actually understand this area of technology, but performing a single google search really is not sufficient for actual understanding.

Oh, and making your own copies from a rental costs you only the price of a blank disk. Anyone who pays more than that to a bootlegger is throwing away money.

Huh? Do you not understand the fact that rentals typically cost money? The rental fee at my local video store is at least twice what I've seen bootleggers charge.

"As regards quality, you're obviously not buying the right bootlegs."

Why would I want to pay someone else to make a copy, when I can do it myself for free?

Because it is not free and because making a copy is a pain in the neck. Seriously. It is a time consuming process that requires some manual intervention so I can't just leave it sitting unattended. I also need to ensure that I have adequate disk space available, which I often don't. Sure, if I was willing to spend time and effort, then it "only" costs me the price of the rental and the blank disc, but since my time and effort are worth quite a bit, buying from the bootlegger makes more sense.

So "If I honestly buy a DVD in another region I should be able to play it on my honestly bought dvd player" becomes "I want there to be worldwide massive stealing, and collapse or severe damage to most publishers of [DVDs/CDs/books/music/software/intellectual property/] and their industries.

Nonsense. If I steal under US regulations (downloading and making a copy for yourself is not illegal in the Netherlands) it is if I don't pay for it. Which I sometimes do to check something out, but if I like it I will buy it afterwards. I have a hugh DVD collection. But if I buy it here it is often not available, not available in the format I want to or much more expensive. Kiddy films are often only available in Dutch-dubbed version (I want the original version and the english version) and the English ones often have the Dutch translation as a transcript instead of English subtitles.

Suppose I emigrate to Australia and I want to see some original Dutch films? The chance that they are available in region 4 is close to nil...

Nah, it is a complicated and absurd method to create a monopoly. I bought my Harry Potter in Australia and can read it here no problem ;)

It would make more sense if they could pay for languages used and all had the same region. The publisher with 'French' had to pay more than the one who bought the 'Dutch' rights because the audience is bigger.

@Hilzoy; we have free phones too if you take a one or two year subscription. But even than you can use all other networks; the providers have arrangements for paying each other.

To get back to the original topic, it seems to me like Apple would secretly be pretty content for the iPhone to be unlocked, or at least not that phased by it. They make money be selling the devices after all, and if they were that worried about it, a) they would have made it harder, b) they could probably break any hack with obligatory software/firmware updates.

Actually, making your DVD player region-free often isn't difficult, either, though, since you ask.

No, you are mistaken. It is not difficult for certain models of DVD players with certain firmware revisions. For others, it is simply impossible.

Which is what I said. "Often isn't difficult" happens to include precisely what you said. It's useful to read carefully.

"Look, I know that doing a single google search may allow you to feel that you actually understand this area of technology, but performing a single google search really is not sufficient for actual understanding."

Thank you for that instruction. Obviously the fact that I offered the results of a google search as an example means that my sole knowledge of the topic consists of that.

Conversation on this level of logic is uninteresting. Carry on, though.

"The rental fee at my local video store is at least twice what I've seen bootleggers charge."

I recommend Netflix. It would be illegal, of course, for me to offer to mail you a copy of any Netflix-available DVD in return for the cost of mail and a blank disk, so I won't suggest you e-mail me, but you might look into your own options.

"It is a time consuming process that requires some manual intervention so I can't just leave it sitting unattended."

The only "intervention" necessary is to put the disks in the tray, start the software, and remove the disks. Honest. I have a, ah, very good friend who has done it many many times.

"buying from the bootlegger makes more sense."

If you want to spend more than about $.75 overall to dupe a 4.7 gig disk, or ~$1.50 for a dual-layer disk (the remaining main cost is what kind of case you want to splurge for; I recommend buying at least 100 at a time, though), I suppose.

And that's assuming you're using Netflix, and not just borrowing free disks from kind friends.

Me, I'd rather make free copies at a cost of seventy-five cents to a dollar or two for the blanks, the case, and possibly the rental, than spend more, but obviously your mileage varies, and you find paying more to be be "objectively superior." Fair enough, but I'll stick to my own view of what's "objectively superior." Or, at least, subjectively superior.

(You can find a variety of software options, including plenty that work well as an all-in-one deal; myself, er, my good friend has his own vagaries of drives, and thus uses a free cracked copy of DVDFabPlatinum to crack encryption, and then a cracked version of Nero to burn, but there are many simpler ways to do it, and perfectly legal software to do it with. You can even spend a year or more doing it solely with various iterations of free and legal demo software.)

Naturally, of course, I know nothing more about this than having done a single google search; obviously that's the only possible conclusion one could draw.)

huge collection. I keep making that mistake because pronounciation sounds so similar to me.

We were in Australia and they managed to lose all our luggage at Heathrow. First bag arrived after more than two weeks and the bag with the dvd's for kiddo's took 4 weeks. So we bought some DVD's over there. According to the producers' moneymaking scam I ought to buy the same films again here, to be able to play them on our dvd player at home. Too crazy for words, really.

I'm not clear what "it" refers to here, since there are several different legal topics in consideration.

"I bought my Harry Potter in Australia and can read it here no problem ;)"

Yes, but I'm not clear that the publisher who owns the legal rights to publish the book in Australia is the one with the right to sell the book in Holland.

If you happened to have only $1,000,000, and you decide to go into the book publishing business to make your fortune, and you invest your money in buying the rights to publish a book in Holland -- but Holland only! -- from a new, unpublished, writer, named "Rowling," who has a manuscript about her "Harry Potter" character, and you buy those sole rights, and publish the book, but then ten other people who have bought the rights in ten other countries all flood the Dutch market with their copies, and they drive you out of business because their copies are made more cheaply and sold more cheaply, would that be something you'd cheerily welcome as being anti-"monopolistic"?

It's one thing to oppose the absurdities of the DMCA. It's another thing entirely to take the attitude that copyright itself is worthless or harmful and that it should be gotten rid of entirely. It's even yet another thing to want to throw out the right of contract.

"It would make more sense if they could pay for languages used and all had the same region."

I started to address this, and then realized that I'm not really sure what you mean. It's possible for book publishers to buy worldwide rights, and some do, but no company seriously has the ability to publish a book most successfully, or successfully at all, in every country on Earth. There's just no publisher that sweeping.

And retaining the rights to sell in a country you can't practically sell well in would be self-destructive.

Typically, buying worldwide publishing rights to a book means that you publish yourself where you're set up to, and then resell the local rights where you're not. It's just not practical or possible to do otherwise.

So either publishers already do what you want, or they can't ("[i]t would make more sense if they could pay for languages used and all had the same region"), or I don't understand what you mean.

"Gee, Gary, it's funny how you mention more specific information with each post, and how you try to reposition retroactively your old, wholly inaccurate posts to accord with this new information..."

I have no idea what you're talking about, but I call your attention to the fact that this comment seems to solely be a personal characterization of me, and not addressed to any other issue of substance. As such, it seems to be a violation of the posting rules. Kindly refrain.

"According to the producers' moneymaking scam I ought to buy the same films again here, to be able to play them on our dvd player at home."

I don't believe you mean "producers" in any of the usual English usages.

The film business being of somewhat Byzantine complexity, it's unclear who you have in mind, precisely, but someone who has ownership of at least some distribution rights, I'm guessing.

The problem is that it's necessary to be specific, when critiquing an ownership-and-distribution system, as to precisely which set of entities you are critizing, and over precisely which issue; merely complaining that the whole system delivers an undesirable (from a specific perspective) result isn't a clear or helpful critique, although it is, to be sure, a useful cri de coeur.

This would probably be helpful to many. Blaming some single "producer" for a matter of distribution rights is disconnected from reality.

You know more than I about this, but are written instructions really a

"..technology, product, service, device, component, or part thereof that that -"

Does the First Amendment have any applicability here?

IANAL, nor cleek, but I have a considerable amount of experience with copyright law, and software is, as I understand it, a "technology" and, if sold, is a "product."

And the First Amendment doesn't overide Section 8 of the Constitution, which says that "the Congress shall have Power To [...] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The problem is the DMCA, and the creation of the idea that it should be illegal to do all the stuff that cleek quoted.

But the First Amendment doesn't make copyright law illegal, per se, no.

Whether it might, properly interpreted, mean that the DMCA violates the Constitution via the First Amendment, I'm not competent to speak to.

Just repealing the whole thing as horrible policy seems clearly in order, though, at the least.

I don't believe you mean "producers" in any of the usual English usages.

funny, I understand perfectly what he means.

Your copyright/distribution argument is misguided because we are not talking about buying 1000 copies of a book or DVD in Australia and flogging them in Holland, instead we are buying one for our own personal use.

So if I point out that your interpretations of the technical and legal/business aspects of region-locking are simply incorrect I'm violating the posting rules, but you happily continue to press your arguments with increasing condescension? (in this case predicated on the offensive suggestion that the poster's command of English is inadequate to make his point). Long live the blogosphere.

"So if I point out that your interpretations of the technical and legal/business aspects of region-locking are simply incorrect I'm violating the posting rules"

Of course not.

And dutch complains about her inadequate grasp of English with frequency. However, if I offended her, I trust she'll mention it. Meanwhile, I don't know why you're looking for reasons to complain about me, but, again, it would be nice if you'd find another interest.

byrningman: Gary usually isn't as condescending as he sounds and he knows that English is a foreign language for me. So I take no offence; sometimes it IS unclear what I mean. Though I agree that in this case context should have provided ample clue's.

If you happened to have only $1,000,000, and you decide to go into the book publishing business to make your fortune, and you invest your money in buying the rights to publish a book in Holland -- but Holland only! -- from a new, unpublished, writer, named "Rowling," who has a manuscript about her "Harry Potter" character, and you buy those sole rights, and publish the book, but then ten other people who have bought the rights in ten other countries all flood the Dutch market with their copies, and they drive you out of business because their copies are made more cheaply and sold more cheaply, would that be something you'd cheerily welcome as being anti-"monopolistic"?

Gary, you do realize that most books here are in Dutch. So your example should be about a Dutch translation of Harry Potter to make it work. In books people buy the rights for a language I though? So I assume that the publisher who would buy the rights for the Dutch translation would be able to sell the books anywhere people would want to read a Dutch translation. Makes much more sense then having a geographical area - that would leave all English speakers in the Netherlands without an option to read Harry Potter in English ;)

You didn't address my examples of why it should not work this way (Dutch films for emigrants, dvd's bought on holiday)

Dutch's point about translation reminds me of this article about translating Murakami, and notes the following

So you can imagine how the flame leapt up when I finished the Rubin translation of Norwegian Wood (Murakami's first huge best seller in Japan, published there in 1987 but not brought out in America until 2000) and read a reference in the Translator's Note to "Alfred Birnbaum's earlier translation of Norwegian Wood, which was produced for distribution in Japan ... to enable students to enjoy their favorite author as they struggled with the mysteries of English." We should not, the note enjoined us, try to obtain this bootleg version, for "the present edition is the first English translation that Murakami has authorized for publication outside Japan."

While this has to do with what Murakami 'authorizes", that an author can authorize one translation for Japan and another for the US hints at unseen depths that one of our lawyerly types can discuss.

Gary, after seeing your 1:32 I'm even more confused by your 12:40. If you weren't defending region codes, then what on earth were you doing? Dutchmarbel was only complaining about region codes, and you somehow get from that to saying she thinks she should be able to violate contracts and overthrow the entire publishing industry. She wasn't talking about selling DVDs, or books, or anything else, in accordance with a contract or not.

She was talking about buying a DVD in one region and playing it in another. It now seems that you have no problem with that (if I'm interpreting your somewhat slartic responses correctly), so what exactly were you objecting to?

Not necessarily, no. I'm primarily only familiar with the details of English-only rights deals, since non-English-rights are something that most book publishers in the English language sell off.

And with English language rights, they can, in modern times, be sold on the basis of worldwide rights, or still somewhat more commonly, divided into North American rights and British commonwealth rights, and sometimes broken down into specific country rights (U.S.-only, Canada-only, etc.).

When you own the rights to publish a book in a given country/region/worldwide, you've almost always bought translation rights, as well, and you hire a translator, and then that manuscript is considered a "derivative work" at that point. Derivative works can only be legally created with the permission of the copyright holder. (This where fanfiction runs into legal trouble in some circumstances.) (And we're talking only about works under copyright, not those in public domain.)

"So I assume that the publisher who would buy the rights for the Dutch translation would be able to sell the books anywhere people would want to read a Dutch translation."

So, no, that's wrong. Distribution rights are quite specific in book contracts, or everyone is in trouble.

"You didn't address my examples of why it should not work this way (Dutch films for emigrants, dvd's bought on holiday)"

First, because it doesn't work that way. :-)

Second, I'll give a quote, rather than my own words, on the reasons, good or bad, for DVD Regions:

[...] The reasons for this is primarily marketing. When a film opens in Europe, it often has already had its run in the United States and is coming to video and DVD. By placing technological blocks in place to keep DVD's coded for North America ("Region 1") from being usable on European ("Region ") players, this avoids movies being imported on DVD before they reach the theaters.

The other reason deals with the differing economic situations in various countries. DVD producers can afford to charge more for a DVD in certain countries (the U.S., for example) than in others (for example, India). Without region coding, nothing stops an enterprising DVD importer from importing hundreds of thousands of DVD's from countries in which the retail prices of DVD's are far lower. This would drive the price of retail DVD's to the level of VHS video.

[...]

The legal implications of region coding are a matter of debate; there have been discussions regarding whether region coding is legal, due to the fact that it allows potential problems with price fixing and other forms of market control. For these reasons region coding has already been outlawed in New Zealand.

There is no technological relation between region coding and CSS encryption; there are plenty of region-coded DVD's that are not CSS-encrypted. According to knowledgable sources, the CSS player licensing agreement however mandates that all CSS-licensed DVD players are also region coded.

Obviously, region coding is a temporary measure; in 20 years, no one will be using old-fashioned DVDs, anyway.

Equally obviously, there would be major problems for a while in economically distributing DVDs around the world if tomorrow regional coding was banned. Whether those problems justify, in some sense, continuing the scheme beyond tomorrow, I can't say. What might be the ideal week or month or year to drop the scheme, and whether it should be replaced with anything beyond simple right-of-contract, I also won't venture an opinion on.

But that there would be some economic dislocation if the scheme were suddenly dropped tomorrow seems unquestionable.

So I see it as more a matter of timing than of right or wrong.

Otherwise, I'd simply note that simply because one way of doing things is more convenient from one point of view -- and therefore seems more "fair" when considered only from that point of view -- doesn't mean that leaving out the consideration of how it affects other parties is, indeed, the most "fair" analysis overall.

And in this case, the reason for the "unfairness" to the consumer is that it presents difficulties to be profitable (and thus in business) if the DVD Regions scheme were to be suddenly dropped tomorrow.

At the least, it would mean that while European and North American consumers would greatly benefit if Indian and Chinese manufacturers and distributors were suddenly able to freely sell copies of DVDs they either hadn't purchased rights to, the actual companies that produced the films -- not the physical DVDs, but the content -- would wind up being unable to sell them them in Europe and NA save below cost, and would go out of business, and we'd have only blank DVDs to be sold in the market.

Because, demonstrably, the only profits that come to producing companies come from selling distribution rights.

If worldwide, all DVDs were suddenly made available at Indian/Chinese production-and-market price, the overwhelming majority of the money that film production companies get back would vanish.

If you could only make, say, $200,000 to make a film, rather than the $20,000,000 a low-budget film costs, we'd only see $200,000 budget films made in the future, save for a few charitable exceptions.

This would be good for the independent market, to be sure, but not for those who like big explosions. A topic for legitimate differences of preference, to be sure, but a significant distinction from today's international film scheme.

Alternatively, a worldwide switchover to selling only universal worldwide distribution rights to a given work on DVD would mean that you'd be a) granting a worldwide, albeit probably time-limited, monopoly to a single distribution company with each contract; and b) meaning that the only way for a DVD distribution company to be profitable would be if it could sell effectively in every single country in the world, or still dealing with local bootlegs -- in other words, a constraint that effectively no company on Earth would be able to fulfil for decades to come, until the world has a far more homogenous culture and economy than it presently does.

This is problematic for quite some time to come.

Obviously there are a variety of yet alternative distribution schemes that could be considered, with various pros and cons, but I'd like to see specific proposals before endorsing the idea that anything is better than the present, certainly flawed, system.

Have I made any progress in dealing with "my examples of why it should not work this way"? :-)

So I assume that the publisher who would buy the rights for the Dutch translation would be able to sell the books anywhere people would want to read a Dutch translation. Makes much more sense then having a geographical area - that would leave all English speakers in the Netherlands without an option to read Harry Potter in English ;)

One of the copyrights is the right to distribute the copyrighted object. This is often licensed or transferred to someone other than the original copyright holder, and often done on a geographical basis.

That said I can buy a Harry Potter movie and the book as well from amazon.uk and have it shipped to me in the US, thus respecting the distribution rights, but I don't need region 2 glasses to be able to read the book version, whereas I do need a DVD player capable of reading region 2 to be able to play the DVD.

There's a whole lotta copyright law that is inconsistent with the first amendment, but SCOTUS has, I think, held that the copyright clause should be interpreted with the 1st A as if they were enacted at the same time. Thus, restrictions that would otherwise violate the 1st A can be perfectly fine under the copyright clause.

Case in point: someone wrote a spoof of the OJ trial called "The Cat NOT in the Hat! A parody by Dr. Juice" in the style of Dr. Suess - the holders of the Suess copyright sued and got a preliminary injunction barring publication of the spoof. Said book is now technically contraband (though my copyright professor had a copy).

I don't understand how this could be a violation of copyright. What is clear to me is this:

1. Distribution of the hacked firmware itself would be a violation of copyright.
2. Telling someone how to hack it themselves is no more a violation of copyright than providing instructions on how to "transform" The Kite Runner into a different novel by replacing the first word of every other sentence.

It makes sense that providing information on defeating locks to copyrighted material should be illegal. But here they are defeating the lock of copyrighted material, not to copyrighted material. A wireless service's software is copyrighted. The service itself is not.

Having said that, what if the Apple programmers became clever and made the firmware that locks the wireless service the same as the firmware which locks any DRM on the iPhone? Then you could not pick one without picking the other.

At the least, it would mean that while European and North American consumers would greatly benefit if Indian and Chinese manufacturers and distributors were suddenly able to freely sell copies of DVDs they either hadn't purchased rights to, the actual companies that produced the films -- not the physical DVDs, but the content -- would wind up being unable to sell them them in Europe and NA save below cost, and would go out of business, and we'd have only blank DVDs to be sold in the market.

Those are regionfree. The official DVD's from Asia (region 3) are not the same price level as the bootlegs from China. I actually have two copies from China and play them on occassion for entertainment value. Have you ever tried the English subtitles they provide with their pirated copy? It is like they are watching a completely different film ;)

But illegal copies are not the same as a legal copy with a different region code, so bringing them into the discussion is confusing the issue.

I have a problem with the regioncodes because it is a moneymaking scam and so far you have said the same thing in different words ("Equally obviously, there would be major problems for a while in economically distributing DVDs around the world if tomorrow regional coding was banned.").

If they have a problem with timing (film in Europe vs dvd in Europe) they should make sure films move over more quickly. They need to adapt their business model, not artificially lock customers into what is more convenient for them.

Arguments against free markets make sense if they protect the customer, but (as in the Universal Health Care discussion) seems weird if they are defended because the producer/seller/owner needs protection.

"While this has to do with what Murakami 'authorizes", that an author can authorize one translation for Japan and another for the US hints at unseen depths that one of our lawyerly types can discuss."

Well, no, they're not "unseen" at all, as I discussed; one simply has to have some faint knowledge of the topic.

The holder of a copyright has the right to authorize as many or few translations as the holder desires. It's a simple matter of chosing to authorize as many or few "derivative works" as one likes. No legal mystery about it at all, and no particular depths: comic strip versions in chewing gum, tee-shirts, images on inflatable beach balls, translations, radio versions, theater rights, game rights, translation rights: it's all something that can be licensed and sold as derivative rights; it's purely basic and simple copyright law, and then just contract law and custom after that. No mystery.

KCinDC: "It now seems that you have no problem with that (if I'm interpreting your somewhat slartic responses correctly), so what exactly were you objecting to?"

I'm trying to think what to say beyond "what I wrote" [in that 12:40]. It seems pretty clear to me, but obviously it isn't to you.

Clearly repetition wouldn't help, but I'm not at all sure what I can say that wouldn't simply be a variant of repeating myself.

That "If I honestly buy a DVD in another region I should be able to play it on my honestly bought dvd player" looks reasonable when considered solely from the point of view of the consumer, but that putting it into effect could cause the collapse of the movie production and distribution business as we know it (this has partially happened in the past, over a period of time, it should however be noted); that it would certainly damage it if it magically happened tomorrow.

That to avoid this, specifics are needed, beyond simply complaining that it's inconvenient to the consumer.

She wasn't talking about selling DVDs, or books, or anything else, in accordance with a contract or not.

You can't buy something without a seller. You can't sell something without having the right to sell it. You can't buy, sell, or own, or rent, a distribution right without said rights existing, or said right being in the public domain. You can't create a distribution right without a legal scheme of such rights, and/or contract law.

You can't have the one point, without all the others.

At present, DVD distribution rights are sold by region (no matter that they're sometimes all held by one company). If you dislike that scheme -- and there are sound reasons to -- you need to suggest a replacement scheme: simple nihlism won't do the job.

"I have a problem with the regioncodes because it is a moneymaking scam"

In the sense that making and selling anything is, sure. Do you object to that on principle?

"They need to adapt their business model, not artificially lock customers into what is more convenient for them."

All business models are "artificial"; "artificially" does no useful work here, save to try to make something sound bad without reason.

The basic point is a fair argument, but people are often inclined to most prefer their own convenience to that of others, as it happens. Perhaps they "should" be otherwise, but arguing that capitalism should be replaced with altruism is an argument that needs considerably more support than given here.

"Arguments against free markets make sense if they protect the customer, but (as in the Universal Health Care discussion) seems weird if they are defended because the producer/seller/owner needs protection."

Hmm? In a contract, both sides need to be protected. Contracts that only protect one side would be definitionally abusive.

And by what magic can one determine which side of a given transaction is the "seller"? Transactions are always trades, with one thing being exchanged for another. Why would it be moral or desirable to only legally protect one side? There's no moral virtue in possessing money, rather than a product, or the ability to perform a service, surely?

"If they have a problem with timing (film in Europe vs dvd in Europe) they should make sure films move over more quickly."

Y'know, maybe, but why should they do so in accord with your preference? You say they "should" do this. Beyond that you would like it, and setting aside for the moment arguments that they might hypothetically make more money that way, why should they? There's some unstated premise here, but I don't know what it is.

If I own something, and it's not a matter of life-or-death, or equivalent, why isn't it, and shouldn't be, up to me as to how and when and why and under what conditions I choose whether or not to sell it to you?

It's not as if you have a right to buy something specific from something -- an entertainment, at that -- and they had an obligation to provide it for you, after all.

All business models are "artificial"; "artificially" does no useful work here, save to try to make something sound bad without reason.

I said the LOCK was artificial, not the business model.

Y'know, maybe, but why should they do so in accord with your preference? You say they "should" do this. Beyond that you would like it, and setting aside for the moment arguments that they might hypothetically make more money that way, why should they? There's some unstated premise here, but I don't know what it is.

Your premise that they lose a lot of money if the DVD would be available too soon. If that was a major concern it would make more sense to align opening times of the movies than to legally trying to prevent me from playing an official DVD of the film.

If I own something, and it's not a matter of life-or-death, or equivalent, why isn't it, and shouldn't be, up to me as to how and when and why and under what conditions I choose whether or not to sell it to you?

It is if you prevent me from finding alternatives. Most cartels are illegal and this comes pretty close.

"Gary - how is this any different than the way CDs work now (and IIRC have always worked)?"

I don't know enough about CD and prvious record distribution to usefully address the question.

But, obviously, if the distribution model for CDs is different from that of DVDs, it's different. If it's not, it's not. If you'd like to elaborate on any relevant differences or similarities, go for it, sir.

On DVDs, people might attempt the thought experiment of considering themselves as having just made a movie they'd like to sell the distribution rights to. Dealing with the marketplace as it exists today, how would you feel if you sold your Regions 1&2 (Europea and U.S./Canada) distribution rights to one company, but then the Region 5 distributor you sold your rights to flooded Europe and U.S./Canada with copies they sold for fifty cents per unit, and you wound up being paid only 1/20th what you would otherwise have made from your creation?

You don't have to be a Huge Corporation to be in this position: you can be a starving artist, living on friends' couches after film school, having made your film on credit cards, a la Clerks.

Maybe you'd be fine with being screwed, because the joys of making it more convenient for consumers to see your movie overcome your mercenary interests. I'm sure some people would feel that way, but unsure it's mandatory that people feel that way, and unsure that it's unjust if they don't.

die-hard record (and CD) collectors will know all about the joys of buying records from American or British artists that were never released in the US. Japan, for whatever reason, gets a lot of good stuff that isn't ever released here. you can also find good stuff from Germany and the UK.

often it's just a re-packaging/re-arrangement of the same stuff we get here. but sometimes the record company releases a full record over there that they never release here. and those releases are like SuperCrack, for completists.

of course, you can play those records and CDs anywhere in the world, no problem. but the DVD restrictions are just silly, and the business model that demands them is even sillier.

Gary - I guess the question is, given that there are no regions for CDs and CD players, and thus one can buy a CD anywhere in the world and play it on a CD player bought anywhere else, and yet the record companies manage to sell billions of dollars of CDs per year, why wouldn't the same system work for DVDs? In other words, why are regions necessary for DVDs at all?

Or are you assuming the regions as a given and attacking the argument that people should be able to circumvent them?

"It is if you prevent me from finding alternatives. Most cartels are illegal and this comes pretty close."

If it's a cartel to protect the rights of creators of entertainments, I'd be for cartels.

But, in fact, it's a protection of the rights of individuals to their creative works, which, however right or wrong, under the doctrine of corporations possessing legal rights, means that corporations also get to protect their ownership rights.

If you want to question the legal doctrine granting corporations such rights, I'm entirely open and sympathetic to that.

Failing that, we're left with an attack on the rights of individuals and corporations alike, indiscriminately. Any implication that it's only an attack on corporate rights is purely false.

If I write a book, paint a picture, make a movie, or create any other copyrightable work, I am not behaving as a "cartel" in seeking not to be stolent from. I utterly reject any such premise.

I similarly reject any notion that you, or anyone else, has any right whatseover, over my work, until such time as I grant it to you.

I really see no basis for any such claims. I'd welcome any defense of such claims, if you care to make them, after you wake up, dutchmarbel.

The idea that you have any sort of right to see or hear or read or own what someone else created, if they don't want to give or sell you such an opportunity, is based on... what?

Before Rowling's last book was released, did you have a right to read the manuscript after it was completed, and being prepared for publication? Yes? No? If not, did you gain such a right after publication, or were you merely given an opportunity at the choice of the writer to make her work available to you, under such terms as she preferred?

Should you have a right to over-ride the author as to when or if you'd be able to read a work? If so, why, and on what basis?

Having intermediaries involved is, of course, irrelevant to the principle.

Pleasant dreams! (I already did "welcome back!" here last week, when dutchmarbel first commented again after some time away.)

"...why wouldn't the same system work for DVDs? In other words, why are regions necessary for DVDs at all?"

I have no idea why regions would be "necessary," which is good, because I never suggested anything of the kind. I was quite specific than any number of alternative schemes would be workable.

Apparently I was unclear when I wrote "Obviously there are a variety of yet alternative distribution schemes that could be considered, with various pros and cons," somehow.

I simply also included the rest of the sentence: "but I'd like to see specific proposals before endorsing the idea that anything is better than the present, certainly flawed, system."

Is there some problem with this?

"Or are you assuming the regions as a given and attacking the argument that people should be able to circumvent them?"

It really really helps to read what I wrote.

How is your question asking if I'm assuming the above compatible with what I actually wrote: "Obviously there are a variety of yet alternative distribution schemes that could be considered, with various pros and cons, but I'd like to see specific proposals before endorsing the idea that anything is better than the present, certainly flawed, system"?

If I'm saying that "there are a variety of yet alternative distribution schemes that could be considered," then obviously I'm not "assuming the regions as a given," am I?

My very first words on this were "That aspect I have mixed feelings about."

Apparently "mixed feelings" may mean "I fanatically believe one thing, no matter that I never said anything remotely of the kind," sometimes.

Living in Germany, I like to view some movies / documentaries (whatever) which might never be available in Europe.

So I went into a German shop asking for a video recorder which could replay PAL (German) and NTSC (US) video tapes. A while later I went looking for a DVD player (for use with the TV). I marched into the shop and asked directly for a player where I could change the region code indefinitely. Back then (don´t know about today) it was freely available too. Maybe I´m unusual but I wasn´t looking for a player to view some American blockbusters early. I was looking for a player where I might view DVDs never sold / available in Europe.

I don´t mind paying for them. I do refuse to accept that I might never see them because I don´t live in the USA. If I pay Amazon.com to send me a certain DVD, I don´t think I cheated an American company. Especially if they never offered that DVD in Germany / Europe.

However if I did buy that DVD in the USA, Australia or somewhere else, I´d have a real problem with understanding why I should buy it again at home. I already did pay, didn´t I? (Assuming of course that it would be even available at home.)

It would be like buying an audio CD somewhere and not being able to play it once you leave the country?

Dealing with the marketplace as it exists today, how would you feel if you sold your Regions 1&2 (Europea and U.S./Canada) distribution rights to one company, but then the Region 5 distributor you sold your rights to flooded Europe and U.S./Canada with copies they sold for fifty cents per unit, and you wound up being paid only 1/20th what you would otherwise have made from your creation?

If the region 5 distributer sells in regions 1 or 2 they would be presumably violating their distribution agreement which would be a pretty clear cut copyright violation and you should then be able to recoup any of your losses.

What I (and I think others) were essentially saying is that the alternative distribution scheme for DVDs is the one that currently exists for CDs (i.e., all CDs work on all CD players and the distribution contracts take that into account), and the evidence that such a distribution scheme would be feasible for movies is the billions in dollars in CD sales that nevertheless go on.

"I do refuse to accept that I might never see them because I don´t live in the USA."

The simple fact of the matter is that before videocassettes became commercially available, we were all limited to seeing films that were either on tv, in theaters in general release in our countries, or as were available in revival in the small number of repertory theaters.

It was perfectly common for many films to not be available at all, for decades, or ever, for a variety of reasons having to do with the distribution rights not being available. ("Animal Crackers"; Sinatra's handling of "The Manchurian Candidate"; there are thousands of examples, though.)

People now enjoy the convenience of home viewing. I think it's fantastic.

It is not, however, a human right.

If I make a film, or book, or painting, or whatever, and I decide you shouldn't see it, that's my goldarn privilege, and neither you nor anyone else has any right to my work.

That's the basic principle, and I'll most certainly defend it.

"I do refuse to accept that I might never see them because I don´t live in the USA."

Well, tough; your desire to entertain yourself doesn't grant you the right to steal from another, and that has nothing to do with where you live.

I lived decades of my life without any particular hope of ever seeing certain films. Life is hard that way. Oh, the suffering.

"However if I did buy that DVD in the USA, Australia or somewhere else, I´d have a real problem with understanding why I should buy it again at home. I already did pay, didn´t I? (Assuming of course that it would be even available at home.)"

It is not, so far as I know, against the law in many places (any?), to buy a DVD from any given region. It is, however, against the law for someone without the right to sell in one region to sell in that region. It is not, however, against the law for anyone to sell you that region's DVDs in that region. What you do afterwards is up to you. So I'm unclear what your complaint is, beyond extrapolating that, sure, Regional coding is annoying to the consumer.

That there are probably better ways to arrange a distribution system, and/or to move to such a better system, is not in debate. That until such time as someone proposes that better system, and outlines it, and it gets agreed to and put into effect, there are some valid reasons for some of the interested parties in the global DVD distribution system to value the present, inconvenient to consumers, system, is also unquestionable. It's not just because they like to annoy people, and are evil and greedy, as it happens; they actually have defensible reasons until a system that would be at least equally in their interest is put up for consideration.

Bottom line is that what we have is a system obviously in need of improvement -- and this sort of thing is simply an example of the sort produced by the growing pains of a globalized economic system -- but it's not a matter of human rights, and when people try to turn a matter of personal convenience into one modeled by the language of human rights ("you have no right to keep me from seeing my preferred movie in my preferred digital format, even before you've released it where I live!"), they're apt to, ah, not be making a case on a sound foundation.

It's actually a pretty extreme case of confusing a privilege (being able to own a copy of an entertainment), and someone's choice to engage in a normal economic transaction ("I will give you X in exchange for Y, but only on the terms we mutually agree") with a right. Nobody has a "right" to see a movie, let alone to own one. They just don't.

"If the region 5 distributer sells in regions 1 or 2 they would be presumably violating their distribution agreement which would be a pretty clear cut copyright violation and you should then be able to recoup any of your losses."

Yes, but that's exactly what people have been objecting to.

"...and the evidence that such a distribution scheme would be feasible for movies is the billions in dollars in CD sales that nevertheless go on."

As I've said many times, there are any number of possible alternative DVD distribution schemes.

I wouldn't worry about it muchly, since DVDs are just a passing medium, anyway. In a few years it will be as big a problem as copy protection on 5.25-inch, 360 kilobytes disks.

Meanwhile, isn't the CD business in increasingly dire straits, in fact?

This is ridiculous, I've never seen anyone defending region-encoding who didn't work for a movie studio. They defend it on the basis of copy-protection, which is a simple red-herring because it has nothing to do with copy protection. The reason it exists is to time releases and, most importantly, charge different prices for the exact same product in different markets.

This whole distribution rights argument is nonsense. If you give someone rights to sell DVDs of Monsterfest 5 in Latin America at $5 a pop, it's not region-encoding stopping them for flogging them to Europe at that price, it's contract law. you'd sue them, no one would do business with them again.

Gary, you're confusing bootlegging operations with legal commerce. Your confusion is entirely pleasing to the movie industry, because by vaguely evoking notions of copyright, piracy and quality-control, they are trying to conceal from you the basic fact that region-encoding exists to shaft the consumer. That is why every consumer on this thread who has had the experience of traveling between regions feels thoroughly shafted.

Of course the irony is that by saddling legal content with consumer-unfriendly technology like region-encoding, the content providers are driving otherwise well-meaning consumers into the arms of piracy. I have bought DVDs in the UK that require me to sit through 10 minutes of anti-piracy warnings (the height of redundancy), trailers and even frickin' advertisements before I can watch the movie I paid for. Every time I watch it. And then the damn thing doesn't even work in the USA without a bit of know-how, even though it probably cost 3 times as much as the same DVD bought in the US. That's a scam in any language or region, and I often feel like an idiot for not picking up a bootleg of identical technical quality, that lets me skip the ads and the previews, and that I can watch anywhere I want. But then my filmmaker girlfriend would be mad.

A while ago I thought the EU was looking into this, but I don't know what happened since.

"The reason it exists is to time releases and, most importantly, charge different prices for the exact same product in different markets."

That certainly refutes the explanation I offered:

he reasons for this is primarily marketing. When a film opens in Europe, it often has already had its run in the United States and is coming to video and DVD. By placing technological blocks in place to keep DVD's coded for North America ("Region 1") from being usable on European ("Region ") players, this avoids movies being imported on DVD before they reach the theaters.

The other reason deals with the differing economic situations in various countries. DVD producers can afford to charge more for a DVD in certain countries (the U.S., for example) than in others (for example, India). Without region coding, nothing stops an enterprising DVD importer from importing hundreds of thousands of DVD's from countries in which the retail prices of DVD's are far lower. This would drive the price of retail DVD's to the level of VHS video.

Yes, quite the contradiction there! I stand corrected.

As for "defending region-encoding," you might want to be specific. Am I "defending region-encoding" in any sense of saying "this is the best way to do things?

Obviously not.

Am I "defending region-encoding" in any sense of saying "this is the only way to do things"?

Obviously not.

Have I said that before eliminating the present system, a new one will have to be put forth?

Yes.

If you have a problem with that, get back to me. Otherwise, enjoy your straw conversationalist.

Have I said that before eliminating the present system, a new one will have to be put forth?

Yes.

???

Well, I have two suggestions. First of all, we could remove region-encoding from DVDs, and every disk could come packaged with a state of the art nano-guardbot who, on detecting use of the sacred media disc displeasing to our new media conglomerate overlords, could spray cyanide gas into the air.

Alternatively, they could just start shipping the discs without the region-encoding so that the minority of consumers affected aren't getting ripped off anymore.

Gary saith:
> If I make a film, or book, or painting, or whatever, and I decide you shouldn't see it, that's my goldarn privilege, and neither you nor anyone else has any right to my work.

I cannot agree. I think that the CD / book model, the first-sale doctrine that says that once you've sold the physical expression, the owner has complete control and the creator has damn-all, is the right one.

Yes, I'm aware that, coupled with the ease of digital reproduction this policy means that most of the money goes out of the content-creation professions if they choose to distribute digital media. I think that's the correct outcome.

I suspect it would take at least a few weeks to changeover all the factories, but you may know more about DVD manufacturing than I, and know that, indeed, they could all suddenly start manufacturally the pre-recorded DVDs without the encoding as soon as tomorrow.

I take it that you feel that the only protection DVD distributors need from infringement of their sometimes exclusive rights to sell in one region, but not another, is to sue anyone they can prove who violated those rights? So, so long as that the right to sue remains available, they should have no worries and no problems?

That if they have economic problems with not engaging in universal simultaneous worldwide release of each and every movie they ever release, that that's just tough on them?

That may be "doable" tomorrow, but is it your position that DVD distributors, and the movie production companies that produce, or contract for the production of, movies, have no legitimate cause for concern, and that their interest is solely Evil Greed? Or what?

Is this also solely an issue of -- and let's be sure to use as loaded a set of words as possible -- "new media conglomerate overlords"?

I can't speak for Dutchmarbel, but I sympathize with her point of view, and its not bedtime yet here in the USA. So ...

If it's a cartel to protect the rights of creators of entertainments, I'd be for cartels.

Capitalism works best when it has perfect competition: no one economic actor has the ability to affect the price. Cartels exist specifically to affect the price, and thus strike at the heart of the capitalist system. They raise prices beyond what they would be in a competitive market, and the whole economy suffers. That is why they are bad -- it doesn't matter who the beneficiary is. You perhaps could make a case that we can afford to lose some efficiency in order to protect entertainers, who are oh so important to our culture (although you might have better luck calling them "artists" instead) but you won't convince me. Nor will I accept that the RIAA exists "to protect the rights of creators of entertainments". (I am less certain about the MPAA, because movies are so much a group thing, and you could make the case that the studios themselves are the creators. But this leaves out the indies.)

If I write a book, paint a picture, make a movie, or create any other copyrightable work, I am not behaving as a "cartel" in seeking not to be stolent from. I utterly reject any such premise.

But when you make a distribution deal with a cartel, then you are authorizing them to behave as a cartel on your behalf.

I similarly reject any notion that you, or anyone else, has any right whatseover, over my work, until such time as I grant it to you.

Which you do, as soon as you take my money.

Who on this thread is arguing that they want your work without paying for it? I see people arguing that they shouldn't have to pay for the same thing twice.

Should you have a right to over-ride the author as to when or if you'd be able to read a work? If so, why, and on what basis?

Off the top of my head, (a) if I've paid for it (I'm willing to exclude bootlegs here), or (b) my local library has paid for it, and allows me to check it out. Nobody (in the world of books) complains about (a), but publishers have certainly complained about (b).

"I think that the CD / book model, the first-sale doctrine that says that once you've sold the physical expression, the owner has complete control and the creator has damn-all, is the right one."

I'm not sure what you mean; if you buy a book, you certainly don't have the "complete control" to duplicate its contents and sell a thousand copies.

You can do it, certainly. And you can also go to jail for it, rare though that is (fine is more likely, if someone presses the case against you, although you might just wind up hit with an injunction and with your material impounded, or just actual damages and any additional profits of the infringer -- but possibly also with statutory damages -- it all depends on the circumstances; statutory damages can range from $200 to up to $30,000, to up to $150,000, depending; plus costs and attorney's fees. That's largely all civil, though; criminal infringement can be worse, though it's relatively rare.)

You own the physical book, and the right to resell that single copy; you haven't purchased the right to duplicate it beyond fair use. That is what "first-sale doctrine" is.

As to whether that's right or wrong, well, that's a matter of opinion.

But if you think that the first-sale doctrine allows you to make copies of copyrighted material, and sell them, you're mistaken.

I don't want to get into a long wrangle over what you or I did or didn't say. Nevertheless, take a look at your words I quoted. OK?
I thought you were arguing that the creator should be able to control the viewing of a work after the sale. If that's not what you were saying, we're arguing past each other.

I'm not advocating copying beyond fair use, and in fact I am scrupulous about not doing so myself. But in fact, I think that given the nature of digital media and the ubiquity of computers (and people who know how to use them, modify them, and design them), such copying is inevitable, not preventable in any acceptable way, and maybe not preventable at all. DRM and the DMCA are ineffective and IMHO meretricious.

Copyability by the end-user is simply the nature of digital media. Trying to change that in technology ala DRM is like trying to make water not wet. Trying to change that in law ala DMCA, "yes, it's bits, but _legally_ it's like physical things" leads inevitably to stupidities like the DMCA.

So I think that ultimately the practical outcome will be that companies will accept that if they create and distribute digital media, people will make and exchange copies at will, and there's really nothing that can be done about it.

Some companies have already shown an ability to succeed in such an environment. I think that companies that can't, whose business plans depend on somehow restricting the copying of digital media, are doomed to failure no matter what laws are passed or what technical schemes are employed.

In regard to Jayann's cites, amusingly, when we used to, back in the day, have the "no, here's how copyright actually works" discussions on Usenet, specifically rec.arts.sf.*, Brad Templeton would commonly show up to agree with me, and the handful of others with experience with copyright law, which is how he wound up writing his FAQ: too much ignorance on Usenet (and all over, including Arpanet-era BBSs) on copyright law. It all comes around.

(Also: the sf community has always been an outstanding way to meet interesting people.)

Let's set aside copying for a moment. I'm the one responsible for conflating the issues, since I seem to have segued from discussing first-sale into discussing copying without adequate change-of-topic delimiters.

> If I meant anything other than what I wrote, I'd have written it.

Ok, I'll take that as confirmation that you _do_ think that if you sell me a DVD that you made, you should retain the right to control how I myself view it, non-commercially, after the sale.

I claim that this is different from the first-sale policy that applies to CDs and books, in which I can discern no such right for the creator, except for public performance. Am I mistaken?

As for old Usenet bona fides, you and I seem to have posted in different circles, but were apparently concerned with many of the same issues. (I once got a cease-and-desist letter from Helena Kobrin for making a three-line fair-use quote from Scientology's OT III.)

"Ok, I'll take that as confirmation that you _do_ think that if you sell me a DVD that you made, you should retain the right to control how I myself view it, non-commercially, after the sale."

And yet you should instead take it as disaffirmation, since, although you "thought [I was] arguing that the creator should be able to control the viewing of a work after the sale," I clearly wrote no such words.

Neither "[i]f I meant anything other than what I wrote, I'd have written it," nor specifying that "[m]ore sweeping generalizations [are] included" actually means the reverse of what it says.

Reading them as some form of "yes, I should believe you meant sweeping generalizations, which I imagine you may have meant, rather than just what you wrote" wasn't actually the intended meaning there.

This sounds snottier than I mean to be, which is very little indeed, but I do have an utterly wrinkled brow as to how it was that you read me in reverse. No offense intended.

Scientologists: don't get me started.

But let me try to be as ne plus ultra clear as I can be: I do not believe that if [I] sell [you] a DVD that [I] made, [I] should retain the right to control how [you yourself] view it, non-commercially, after the sale.

I have never believed such a thing. I have never asserted such a thing, nor anything close to such a thing.

I believe you don't have, and for now, until we reach some other equitable solution in law, should not have, the right to make and distribute unlimited or significant numbers of copies of other people's creative works, beyond fair use, absent permission of the creator/rights-holder (although I do believe we should go back to a much shorter time regime on rights).

Never said a damn word about viewing. Why you think I did, I have no idea; am I forgetting something I wrote? (Perfectly possible.)

"If the region 5 distributer sells in regions 1 or 2 they would be presumably violating their distribution agreement which would be a pretty clear cut copyright violation and you should then be able to recoup any of your losses."

Yes, but that's exactly what people have been objecting to.

Who, Gary? I haven't seen anyone objecting to that. What people are objecting to is the idea of region codes -- that DVDs, unlike all other objects, need a technological restriction to attempt to enforce the contract about where they can be sold (a restriction that affects the ability of the buyer to use the item).

Dutchmarbel's comment that sparked all this was about buying a DVD in one region and then taking it home and playing it in another. Nothing about wanting to buy DVDs in the Netherlands of movies that hadn't been released yet. Nothing about most of what you written about in this thread.

That would be because most of what I've written about in this thread have been in response to things other people have said.

That's probably true, but much of it seems to me to be in response to arguments that no one is making -- that anyone should be able to sell a DVD anywhere regardless of contract, or that copyright should be abolished. Of course you clearly feel that others (including me) are responding to you as if you'd made statements you'd never made, so perhaps it's only fair.

Me: "If the region 5 distributer sells in regions 1 or 2 they would be presumably violating their distribution agreement which would be a pretty clear cut copyright violation and you should then be able to recoup any of your losses."

Gary: "Yes, but that's exactly what people have been objecting to."

I don't think it is. I think what people object to is that they can unwittingly buy a DVD in country one and not be able to play in country two. Its not like there are big labels on the DVD saying that it won't play in the Netherlands if you buy it in Australia.

This wouldn't be so bad if perhaps there was a way to exchange at minimal costs the wrongly purchased DVD, or get a refund when you find out that you can't play it, but that doesn't seem to be the case.

I frankly think this is largely a non issue except for the unwary consumers. People who have understood the regions have for years been able to get players that could play all of the regions. It certainly wouldn't break the movie industry not to have the regions as long as they can control when and where their DVDs are distributed. Those who have wanted to watch DVDs that didn't have local distribution have long ago figured out how to do this. This is a really minor market, and the bulk of people will still be ordering/buying their DVDs locally.

If I make a film, or book, or painting, or whatever, and I decide you shouldn't see it, that's my goldarn privilege, and neither you nor anyone else has any right to my work.

This still seems to me like you're talking about viewing. I got the idea from the word "see".

But I now maybe comprehend that I was inferring, without basis, that you had sold the work in question to me before deciding I shouldn't see it. Careful reading discloses that the sale I imagined is not implied by your words, and the work you're keeping me from seeing is still in your posession. Sorry to have misunderstood.

OTOH, without me first getting my hands on your work in some legal fashion, I can't see what relevance your remark has to copyrights and region codes. Probably I'm just dense.

I believe you don't have, and for now, until we reach some other equitable solution in law, should not have, the right to make and distribute unlimited or significant numbers of copies of other people's creative works, beyond fair use, absent permission of the creator/rights-holder

I agree. Both morally and legally.

However, I can't think of a good way to enforce such rights for digital media. Believe me, I've tried, 'cause if I could come up with a way to make bits effectively uncopyable, I'd be rich as Croesus, and a paid subscriber to your blog. Alternatively, if I could figure out an ideal set of laws that preserved the rights we both agree are due to creators without the trampling of other peoples' rights that I find so objectionable in the DMCA, I might be famous. (Just look what the GPL has done for Stallman.)

Yeah, Gary you've got a bunch a different issues (region-encoding, copyright, piracy, distribution rights) confused. As I said before, this is understandable, because the movie industry wants you to be confused, because region-encoding doesn't stand up to any serious questioning. Everybody on this thread who has direct experience of region-encoding has found it to be an excessive infringement on their legitimate enjoyment of legally-owned material.

Furthermore, despite the existence of multi-region players, this is a real problem today and will be an even worse problem tomorrow. DVD drives on computers are also locked, so if I take my laptop will my on my travels I am limited in the DVDs from my multi-region collection I can take with me. I could try to crack my laptop player, but if it goes awry I've got a bricked DVD drive stuck in laptop - not fun.

Moreover, the encoding is even more solid on the new HD formats, since the industry is trying to conflate region-encoding (which exists to support cartel pricing models) with anti-piracy measures. In reality, of course, region-encoding encourages piracy, because people will increasingly seek out non-crippled versions of media for the sake of their own convenience. If you sell a crappy product, competition will arise. If you make all legal products crappy, illegal competition will arise.

And finally, yes only a minority of consumers are affected. This is why the scheme has not been properly legally challenged.

Meanwhile, isn't the CD business in increasingly dire straits, in fact?

As are the vinyl, the lacquer, and the wax cylinder businesses. And the calf-rearing for book-pages industry, the quill growing industry, the lead type foundries, etc. Doesn't mean publishing as a whole is in dire straits.

CDs appear to be tending obsolete. I disagree, to be honest, but still, the Market Has Spoken, and music travels over the intertubes. Tying yourself to non-core elements (selling plastic plates) and ignoring essential elements of your job (making great music) will always lead to tears.